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2005 DIGILAW 768 (JHR)

Md. Awhab Seikh v. State of Jharkhand

2005-10-06

M.Y.EQBAL

body2005
ORDER M.Y. Eqbal, J. 1. Heard Mr. R.C. Khatri, learned Counsel for the petitioners learned Advocate General appearing for the respondents-State and Mr. P.K. Prasad, learned Counsel appearing on behalf of respondent Nos. 8 and 9. 2. In this writ petition the petitioners have prayed for quashing the office orders dated 6.1.2005 and 8.4.2005 (Annexures 38. 4) by which respondent Nos. 2 and 4, namely. Commissioner, Santhal Paragana Division, Durnka and the Deputy Commissioner, Deoghar alleged to have instructed the authorities to forcibly oust the petitioners from their residential house by deploying armed force. 3. Petitioners' case is that the land measuring 15 bighas 12 kathas and 5 dhurs situated in the district of Deoghar and the building stating thereon known as Marble House, was at one point of time, leased out by the then Gahwal Pathrol Estate in favour of Mehralli Seikh in the year, 1900 for a period of 50 years. Said Mehralli Seikh continued to be in possession so long he was alive and after his death the petitioners, being the heirs are continuously residing in the said house. In the year, 1988 respondent Nos. 8 and 9 applied for mutation of their names in respect of the said property on the basis of the subsequent lease, executed in favour of their predecessor-in-interest. Mutation was disallowed by the order of the Circle Officer, petitioners' further case is that a proceeding under Section 144, Cr PC was also initiated and the same was dropped but in spite of that, all of a sudden, the local administration along with police personnels, came to the said house on 8.4.2005 and wanted to take forcible possession in presence of the Circle Officer. 4. Considering the averments made in the writ petition, all the respondents were directed to file their counter affidavits. Respondent Nos. 8 and 9, in their counter affidavit, have stated that Merralli Seikh was the tenure holder who granted raiyati settlement in favour of one E.M Floyd by registered lease deed dated 15.11.1900 with right to construct house. The said raiyat E.M. Floyd sold the said land to Henry David Bon-zamine on the same day which was subsequently purchased by respondent Nos. 8 and 9 by virtue of a registered document. The petitioners, therefore, have no right to maintain the writ application when their ancestor had already made a raiyati settlement as far back as in 1900. The said raiyat E.M. Floyd sold the said land to Henry David Bon-zamine on the same day which was subsequently purchased by respondent Nos. 8 and 9 by virtue of a registered document. The petitioners, therefore, have no right to maintain the writ application when their ancestor had already made a raiyati settlement as far back as in 1900. These respondents have further claimed as to how, when and in what manner the petitioners continued to be in long possession of the properly in question. They have asserted that they are the lawful owners and have been continuing in possession which will be apparent from the judgments of the civil Court and the revenue records. They have alleged that it is the petitioners who have been planning to oust these respondents illegally and forcibly due to which the respondents took shelter of the police. Respondents further case is that after the death of Mehralli Seikh his three sons Kari Seikh, Parmali Seikh and Hasanu Seikh inherited the property and they sold the same to one Amrit Lal Sil along with all zamindari rights by virtue of sale deed in the year, 1913. 5. Respondent Nos. 8 and 9 have further stated in their counter affidavit that Henry David Benzamine who had been granted settlement of 9 bighas, 12 kathas and 5 chataks of lands, had constructed a house known as 'Marble House.' The son of Benzamine sold the aforesaid land with Marble house to one Produman Kumar Mullick in the year, 1919 and the legal heirs of said Mullick sold the said land i.e. the property in question, to these respondent Nos. 8 and 9 by a registered sale deed. After purchasing the said property respondent Nos. 8 and 9 along with other purchasers, filed Eviction suit No. 31/91 for eviction of Bihar State Food and Civil Supplies Corporation which was decreed vide judgment dated 6.3.1993 and possession of the said land with Marble house was delivered to these respondents. Thus respondent Nos. 8 and 9 came in possession of the property in question in 1988 and are continuing their possession. 6. On the other hand, respondent Nos. Thus respondent Nos. 8 and 9 came in possession of the property in question in 1988 and are continuing their possession. 6. On the other hand, respondent Nos. 2 and 3 have stated in their affidavits that Mehralli Seikh had been granted lease of the disputed property by the then Ghatwal of Pathrol Estate in 1900 which was approved by the Commissioner under the provision of Bengal Ghatwali Lands Act, 1859. Thereafter the said property passed to E.M. Floyd and then to H.M. Benzamin. These respondents have stated that the lease granted to Floyd has got no legal force and sanctity because of the fact that the lease was not approved and counter signed by the Commissioner which is a mandatory requirement for lease. Thus the lease granted to E.M. Floyd was void and ab initio. In para 4 these respondents have asserted that the ancestor of the petitioners had transferred the property in question to one Amrit Lal Sil in 1913 by a sale deed which will be apparent from the order of the Deputy Commissioner dated 21.7.1988 passed in Misc. case No. 42/87-88. In this way the ancestors of the petitioners had ceased to have any right, title and interest over the property in question and hence the petitioners cannot claim to have any interest in the property as heirs. 7. From perusal of the entire affidavits filed by the petitioners, the respondents-State and respondent Nos. 8 and 9 it is clear that the petitioners and respondent Nos. 8 and 9, on the one hand are claiming title and possession over the disputed property whereas the respondent-State, on the other hand, is claiming that the entire transaction of the property was illegal. 8. In my opinion the question as to who is the actual owner of the property in question having right, title and interest over the same, cannot be adjudicated by this Court in exercise of writ jurisdiction. So far the claim of the petitioners that they have been dispossessed forcibly is concerned. I do not find any document to prima facie show that it is the petitioners who were in possession of the property and they have been forcibly dispossessed. In such circumstance, no relief can be granted to the petitioners. This writ application is dismissed. So far the claim of the petitioners that they have been dispossessed forcibly is concerned. I do not find any document to prima facie show that it is the petitioners who were in possession of the property and they have been forcibly dispossessed. In such circumstance, no relief can be granted to the petitioners. This writ application is dismissed. It is made clear that I have not gone into the question as to who is the rightful owner of the property in question. The person aggrieved may approach appropriate forum in accordance with law.